Finally! The International Criminal Court Convicts Someone of Using Rape As A Weapon of War

Former DRC vice-president Jean-Pierre Bemba has been found guilty of commanding mass rape in a landmark trial before the International Criminal Court (ICC) signifying positive progress in the prosecution of sexual violence in armed conflict.

The ICC has delivered a ground-breaking conviction this week. Not only does Bemba represent the first time the ICC has focused on rape as a weaponised instrument of war, but it also represents the first time a defendant has been convicted of war crimes committed by those under their command. The verdict delivered by the Trial Chamber has been praised by ICC Chief Prosecutor Fatou Bensouda as ‘an important day for criminal justice’. According to Bensouda, ‘commanders cannot take advantage of their power and status to grant themselves, or to their troops, unchecked powers over life and fate of civilians… they have a legal obligation to exercise responsible command and control… to ensure their troops do not commit atrocities’. This is the lesson which the ICC has enforced in its judgement, whilst simultaneously sending a clear message that ‘impunity for sexual violence as a tool of war will not be tolerated’.

In a trial lasting 4 years between November 2010 and March 2016, Bemba, 53, was on indictment before the ICC for failing to prevent his rebels from killing and raping civilians in the neighbouring Central African Republic during the ongoing conflict in 2002 and 2003. The court ruled at the end of his trial in The Hague that Bemba was guilty of such war crimes and he will be remanded in custody until his sentencing later this year. He was convicted of two counts of crimes against humanity (involving murder and rape), as well as three counts of war crimes (including murder, rape and pillaging). Prosecutors told the court that Bemba, who led the Congolese Liberation Movement (CLM), ‘knew that the troops were committing crimes and did not take all necessary and reasonable measures within his power to prevent or repress their commission’.

More than 5,000 victims participated in the hearing representing the highest number in any of the cases before the court with 77 victims actively giving evidence. Accounts detailed the systematic use of rape as a war tactic, and the continuous threats of fear, violence and death to which they were subjected. In a graphic description of the attacks, one testimony specified how the ‘MLC soldiers by force, knowingly and intentionally invaded the bodies of the victims by penetrating the victims’ anuses, vaginas or other bodily openings with their penises’.

The verdict marks the first time the ICC has convicted a defendant under the UN established legal principle of command responsibility, whereby leaders or commanders are held accountable for failing to take action to stop crimes they know are being committed by subordinate troops or militia members. While the reality of the crimes is appalling, the significance of this decision must be celebrated. Fatou Bensouda praised the Trial Chamber’s decision, stating that ‘commanders are responsible for the acts of the forces under their control’. Carrie Comer, a representative from the International Federation of Human Rights, commented that such a conviction positively reinforces the international community and the UN’s involvement in proceedings and ‘sends a strong message from ICC judges that commanders must prevent and punish war crimes’. Samira Daoud, a member of Amnesty International, also hailed the guilty verdict as a way to make clear that ‘military commanders and political superiors must take all necessary steps to prevent their subordinates from committing such heinous acts and will be held accountable if they fail to do so’.

Despite the clear implications this has in terms of command responsibility, and the weakening defense of military superiors being disassociated from the acts committed by troops in the course of warfare, the guilty verdict is undoubtedly a historic moment in the battle for justice and accountability for victims of sexual violence on conflict.

Prior to the Bemba judgement, the ICC was under considerable critique for its failings to secure convictions of rape or sexual violence contained in Article 7 of the Rome Statute for the International Criminal Court 2002. The Lubanga case is a primary example of the ICC’s practical limitations and its bias towards prosecuting other crimes over that of rape. Thomas Lubanga was on trial before the ICC on the grounds of enlisting, conscripting and facilitating the use of child soldiers below the age of 15. However, testimonies were heard from witnesses and victims detailing graphic accounts of sexual violence. As a result the trial was suspended in order to consider the amendment of the charges against Lubanga to include sexual violence. This decision was rejected by the Appeal Chamber in 2009 which in turn raised doubts regarding the ICC’s effectiveness in prosecuting crimes relating to sexual and gender violence.

Dissenting Judge Odio Benito argued that not only is the court restricted by practical limitations such as resources, access to medical facilities to preserve forensic evidence and the social and cultural stigma surrounding rape victims in areas such as the Congo, but the Trial Chamber in this situation misinterpreted its judicial function. Instead, the ‘ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court’. Benito’s statement thus confers an important pastoral role on the International Criminal Court and in light of this victims should be provided with the right to justice on both a moral and legal basis.

Consequently, the exclusion of sexual violence in the Lubanga case, and the later case of Katanga, whereby sexual violence was included but not successfully prosecuted, was compared to the ways in which comfort women (the Korean, Chinese and Japanese women forced into prostitution by the Japanese Imperial Army during World War Two), were denied mechanisms to legal redress in the post-WW2 tribunals. This signified to many campaigners that little regarding the legal opportunities provided to victims to secure justice had progressed in six decades. The ICC was therefore criticised as hindering the successful prosecution of rape and sexual violence in conflict.

The Bemba case marks the beginning of a restoration of faith in the ICC, and is rightly being regarded as a fundamentally progressive step in the prosecution of sexual violence in armed conflict. The verdict is a clear indication to victims that the court is improving the ways in which it addresses gender violence since the failings in Lubanga and Katanga, and sets a useful precedent for future cases.

Third year law student with an interest in criminal and international law, particularly the criminalisation of sexuality (paraphilia; BDSM; prostitution; consent; and HIV transmissions). My research encompasses viewpoints ranging from legal theory and literature to the wider political, social and cultural framework in which criminalisation works within.

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